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General Counsel’s motion to dismiss denied – Plaintiff stated a claim against Employer's General Cou

Plaintiffs Lisa DeLisi ("DeLisi" or "Plaintiff"), Crystal Alexander ("Alexander"), Monique McCabe ("McCabe") and Anika Cosbert ("Cosbert") (collectively, "Plaintiffs") bring this employment discrimination action claiming violations of their civil rights pursuant to Title VII of the Civil Rights Act of 1962, 42 U.S.C. §§2000e et seq. ("Title VII") and the New York State Human Rights Law, New York Executive Law §§290, et seq., ("NYSHRL"). The claims are brought against defendants The National Association of Professional Women, Inc. ("NAPW"), Matthew Proman ("Proman"), Chris Wesser ("Wesser" or "Defendant"), and Krissy L. DeMonte ("DeMonte") (collectively, "Defendants"). Plaintiffs also claim Defendants engaged in unlawful wage practices in violation of New York Law Labor, section 193 ("NYLL"). Defendant Wesser moves to dismiss Plaintiff DeLisi's claims, the only claims asserted against him, pursuant to Federal Rules of Civil Procedure ("Fed.R.Civ.P."), Rule 12(b)(6).

The facts alleged in the Plaintiff’s Complaint are as follows:

  • DeLisi was first employed by NAPW in April 2008 as a salesperson in "Membership Sales" department. Amended Complaint ("Cmplt."), ¶31.

  • She was a strong performer and over time, was promoted to the "Press Release Sales" department. Cmplt., ¶32.

  • From 2010 until she was constructively discharged in February 2013, DeLisi reported to Defendant DeMonte.

  • According to Plaintiff, DeMonte frequently subjected her to sexual harassment by slapping, pitching or groping DeLisi's buttocks, and calling her sexually offensive names, like "bitch" and "fucking bitch." Cmplt., ¶33-35.

  • Starting in the summer of 2011 and thereafter, DeLisi regularly complained to the Director of Human Resources Julie Whicher ("Whicher") about DeMonte's behavior, but no action was taken. Cmplt., ¶36-38. In June 2012, DeLisi complained to Wesser (the General Counsel of NAPW) and Proman (the founder and owner of NAPW), (Cmplt., ¶20-21) that DeMonte was being sexually inappropriate, which complaints were not taken seriously by Proman. Cmplt., ¶39-40.

  • Immediately thereafter, DeLisi told Wesser and Whicher that Proman did not take her complaints seriously, and she was advised by Whicher to "accept" the harassment because DeMonte was not "going anywhere." Cmplt., ¶41-42.

  • Days later in July 2012, DeMonte slapped DeLisi even more forcefully than usual, and DeLisi responded strongly that the aggressive behavior needed to stop. "Within minutes," DeLisi went to Whicher's office and was demoted to the Membership Sales department, causing a drop in her pay by more than half. Cmplt., ¶43-46.

  • Whicher suggested the job was "too stressful" for DeLisi, which was contrary to DeLisi's historically strong performance. Cmplt., ¶47.

  • Later that day, partially because of the stress and anxiety caused by DeMonte's sexual harassment, DeLisi took a medically-approved disability leave. Cmplt., ¶48.

  • On July 24, 2012, DeLisi filed a charge with the Equal Employment Opportunity Commission ("EEOC"). She returned to work at the NAPW following her leave in January

  • 2013. Cmplt., ¶50-51. Soon thereafter, DeLisi was subject to a "hostile and retaliatory work atmosphere" which included efforts to isolate and intimidate her, requiring her to pursue "dead-end" sales leads which threatened her income, and requiring her to solicit unsatisfied former members. Cmplt., ¶52.

  • As to Defendant Wesser specifically, Plaintiff alleges that the retaliation included Wesser's "improper communications" with her, including his attempts "to coerce [her] into signing documents pertaining to her discrimination and retaliation claims" by falsely telling her the documents had been reviewed by her counsel. Cmplt., ¶52.

  • DeLisi also alleges that despite that Wesser had previously told her she could "turn to him with work-related concerns," when she did attempt to talk to him about the "dead-end" leads she was getting, he "refused to entertain" her complaints, saying "he didn't want to hear it." Cmplt., ¶53.

  • DeLisi alleges this was "direct participation" in NAPW's retaliation against DeLisi. Cmplt., ¶54. In addition, when DeLisi again approached Wesser to complain about the poor leads and hostile treatment she received from DeMonte and others in an attempt to alienate her, Wesser called her a "liar" and accused her of manufacturing evidence of discrimination for her attorneys, and mocked her for "complain[ing] about every single thing" and not having her "head into it." Cmplt., ¶56.

  • This response from Wesser, the General Counsel, as well as the other retaliatory acts she suffered on a daily basis, resulted in her constructive discharge in February 2013. Cmplt., ¶56.

Law: Section §296(1) of the NYSHRL states that it is unlawful for an employer to discriminate on the basis of, inter alia, race, creed, color, national origin, sexual orientation, sex or disability. Section §296(6) states it is "an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article." See NYSHRL, N.Y. Exec. Law §296(6) and (1). Section 296(7) makes it an "unlawful discriminatory practice to retaliate or discriminate against any person because he or she has opposed any practices forbidden under this article…" See NYSHRL, N.Y. Exec. Law §296(7). While there is no claim for individual liability under Title VII, "defendants may be held individually liable under the [NYSHRL]." Ramirez v. Hempstead Union Free School Dist. Bd. of Educ., 2014 WL 3547374, *6 (E.D.N.Y. 2014) (citing Feingold v. New York, 366 F.3d 138, 157 (2d Cir. 2004) and Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995)).

Other courts have found that a failure to investigate can constitute "active participation" to support an "aiding and abetting" claim. See Feingold v. New York, 366 F.3d 138, 157-158 (2d Cir. 2004) (summary judgment denied on §296 claims where defendants took no action to remedy such behavior of which they were aware); Gallo v. Wonderly Co., Inc., 2014 WL 36628, *8 (N.D.N.Y. 2014) (a person may be liable under §296 for taking no action to remedy discriminatory behavior); Lewis v. Triborough Bridge and Tunnel Auth., 77 F.Supp.2d 376, 384 (S.D.N.Y.1999) ("the case law establishes beyond cavil that a supervisor's failure to take adequate remedial measures can rise to the level of 'actual participation' under HRL §296(6)") accord Cid v. ASA Institute of Business & Computer Technology. Inc., 2013 WL 1193056, * 6 (E.D.N.Y. 2013) (failure to investigate complaints of discrimination provides sufficient basis for aiding and abetting liability under New York City Human Rights law) (citations omitted); cf. Morgan v. NYS Atty. Gen.'s Office, 2013 WL 491525, *13 (S.D.N.Y. 2013) (recognizing that the failure to investigate could constitute aid and abetting liability, but finding this plaintiff failed to allege that he ever brought the discriminatory conduct to his superiors).

[Defendant also argues that his alleged "failure to investigate" cannot support the retaliation claim because it is not an "adverse employment action," citing Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712, (2d Cir. 2010). His reliance on Fincher is misplaced. In that case, the plaintiff had allegedly complained to a senior director, which complaint was not investigated. Plaintiff argued that this failure to investigate was in retaliation of her making the complaint itself. Id., at 716. The Second Circuit ruled that "an employer's failure to investigate a complaint of discrimination cannot be considered an adverse employment action taken in retaliation for the filing of the same discrimination complaint," id., at 721, and affirmed the district court's decision to grant summary judgment.]

The Court refused to find that the Defendant’s, Wesser’s inaction was an adverse employment action: “[Plaintiff] alleges that the failure to investigate following her return to work in January 2013 was in retaliation of her earlier complaints.” Citing Fincher, the Court held that "[w]e do not mean to suggest that failure to investigate a complaint cannot ever be considered an adverse employment action for purposes of a retaliation claim. It can be if the failure is in retaliation for some separate, protected act by the plaintiff." Id., at 722. Finding that the general counsel availed himself to the Plaintiff for her to make a complaint of, the Court found that Plaintiff's allegations sufficiently plead a claim against Wesser under NYSHRL §296.

The case is Delisi v. The National Assoc. of Professional Women, Inc., CV 13-5322, NYLJ

1202672577425, at *1 (EDNY, Decided September 29, 2014).

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